Blog of the International Journal of Constitutional Law

The Continental Divide Writ Small

One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.

One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.

Yet constitutional differences, some quite significant, continue to endure. While the major differences between the two countries’ systems of government, political histories and constitutional legacies, are relatively well known, the less spectacular differences remain underexplored.

In July 2008, for example, a week after the U.S. Supreme Court ruling in Heller (essentially expanding the right to bear arms to individual/private use), Canada’s Governor General appointed Dr. Henry Morgentaler (currently 86 years old) to the Order of Canada – the highest official recognition of one’s contribution to Canadian society. Morgentaler, for those of you who do not follow constitutional law and politics north of parallel 49, is one of the most daring and progressive activists in Canadian constitutional history, and has been the champion of abortion rights in Canada for over 30 years. He and his clinics have been the target of many assaults by pro-life activists over the years.

Another reminder of these differences came in this weekend’s criminal underworld news: a former model was viciously murdered in LA, allegedly by her ex-husband, a reality TV star and a Canadian. (How the victim’s body was identified by police is an altogether different story, suitable for a forensic medicine blog). The suspect, still on the loose, is thought to have fled the US to Canada by boat. In 2001, the Supreme Court of Canada ruled in United States v. Burns that Canadian citizens facing serious criminal charges in the United States that may lead to their execution are not to be extradited to face trial unless a guarantee not to seek the death penalty in provided by American prosecutors. The main constitutional ground for the ruling was breach of “fundamental justice” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Although the Court did not rule on whether the death penalty was unconstitutional (section 12 of the Charter prohibits cruel and unusual punishment), at the principled level the ruling in Burns may be seen as a progressive, anti capital punishment statement. At the same time, the potentially grave consequences for law enforcement are obvious.

Either way, although dated in some respects, parts of Seymour M. Lipset’s classic account of the US/Canada continental divide remain as relevant today as they have ever been.

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Published on August 23, 2009
Author:          Filed under: abortion, Canada, extradition, hp, Ran Hirschl, United States

Are Constitutions like Marriage?

The convenant binding two people “til death do [them] part” seems to have much in common with constitutions. Both contracts are highly symbolic and probably confer some degree of legitimacy upon unions that will inevitably weather their fair share of crises. Both contracts, when entered into, are thought to last indefinitely. We can continue to be optimistic about any given union, but we know many of them are doomed to come apart.
But how do the rates of divorce and constitutional replacement compare? Here I present some evidence from a book that Tom Ginsburg, James Melton, and I have just finished entitled The Endurance of National Constitutions (due out next month). [Tom and I hope to serialize some of the highlights from the book here in the next few weeks].
The figure above plots the hazard estimate of constitutional death, which is the probability of death conditional on having lived to a given age. The figure, then, charts the risk of death at various points in the life cycle of a constitution.
Here’s some of our discussion of these patterns from Chapter Six of the book:

As it happens, the shape of the hazard rate for constitutional dissolution
seems to mirror that of marriage dissolution, at least in some cultures. With
data on Norwegian couples, for example, Aalen and Gjessing (2001)
show that the risk of divorce is low in the first one or two years of marriage
(roughly 1 of 1,000 couples will divorce) but the divorce rate rises steadily
until age six, when it peaks (the peak rate differs by era, but for couples
married in 1980 the rate was 22 in 1,000), and then decreases gradually with a
trivially small uptick in the divorce rate after twenty years. In the case of
constitutions, the hazard rate takes longer to reach its peak at age fifteen
(where it sits at roughly 27 deaths per 1,000) but then decreases steadily and
substantially until by age fifty the rate is approximately .02, or 20 deaths per
1,000 constitutions. Curiously, not only does the shape of the hazard rate match
across the two domains, but the hazard rate itself is almost equivalent when
both rates are at their peak. For the many scholars who have found the marriage
covenant to be a useful analogue to the constitutional one, these results
provide more ammunition.

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Published on August 21, 2009
Author:          Filed under: hp, Zachary Elkins

Constitutional implications of Japan’s upcoming election

Japan’s Lower House elections will occur in a few days time on August 30. The Liberal Democratic Party (LDP), which has run Japan more or less continuously since its formation since 1955, is widely expected to go down to defeat. The opposition Democratic Party of Japan (DPJ) is expected to take the lead role in a new government, probably in cooperation with coalition partners.

How much of a difference will this make? It is hard to tell. The DPJ is led by former members of the LDP and it is hard to see significant policy differences between the LDP and DPJ. On constitutional reform, for example, when the revisionist faction of the LDP called for amendments a few years ago, the DPJ followed suit with its own proposals for reform that were fairly similar to those pushed by the LDP. (The main symbolic issue there is changing Article Nine, which prohibits maintenance of an army, to reflect current “understandings” of the role of the Self-Defense Forces.) In the current election, there are minor differences between the parties, for example on the size of subsidy per child being offered to spur Japan’s low birthrate, but mostly the issue seems to be about competence rather than policy.

In other ways, however, the prospect of alternation in power is likely to significantly affect the operation of Japan’s political system, in many ways bringing it closer to the formal description of the processes in the Japanese Constitution of 1946. Consider two examples: the role of the Diet and the position of the courts. The Diet is formally the supreme organ of state power and the sole law-making body (Article 41). In reality, Japanese statutes are nearly always drafted by the bureaucracy in cooperation with the LDP, and so the formal legislative process is just that–a mere formality. The Diet has virtually no independent impact on the laws that it passes (and I’m told that legal publishers have been known to publish statutes even before passage, since they are confident the Diet won’t change them). Recently, however, the LDP’s loss of the Upper House has meant that the opposition can block legislation, and in a couple cases this has forced some modification of bills after introduction into the Diet. This trend may continue with the presence of a non-LDP government, perhaps involving a coalition. So the legislature may begin to “matter” in the sense of serving as a true forum for deliberation and policy-making.

Another structural feature concerns the courts. The Constitution (Article 76) provides that all judges shall be independent and bound only by the law. Yet, as Mark Ramseyer and co-authors have demonstrated, Japanese judges pay attention to their superiors in the bureaucratic hierarchy, who in turn are responsive to certain LDP policy interests. What will the fall of the LDP, should it materialize, do for judicial independence? One can imagine that the prospect of alternation in power will, eventually, produce a more independent judiciary, as no political party is in position to consistently discipline the courts.

These are just two ways in which we might see political practice shift more toward the apparent requirements of the constitutional text. On the more visible symbolic issue of Article Nine, however, there is little difference between the DPJ and LDP: both read the clause to allow for a fairly significant defense capability.

Stay tuned and we’ll see what happens August 30!

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Published on August 21, 2009
Author:          Filed under: hp, Japan, Tom Ginsburg

Iraq’s Constitutional Review Committee Delivers its Final Report to Parliament

The Iraq Constitutional Review Committee (CRC) submitted its final report to the Iraq Parliament on July 27 with little notice or fanfare – over two and half years after it began its constitutionally mandated comprehensive review, the report comes in at 68 pages (in English) and represents dozens of proposed amendments to the 2005 Constitution. It is now up to the Council of Representatives (CoR) to vote on the package. If it passes it goes to national referendum.

The report contains a number of important substantive recommendations that should enjoy widespread support, including:

• fleshing out the form and character of Iraq’s second chamber of Parliament, the Federation Council;
• addressing the paralysis regularly faced by the Council of Representatives by reducing the quorum requirement to a third (but retains the absolute majority threshold for decisions);
• providing greater status to the Council of Ministers, as opposed to the Prime Minister alone, by making the Council the “supreme executive and administrative branch” and charging it with “develop[ing] the strategies and policies of the country and overs[ing] the implementation of laws and regulations and manag[ing] the work of the government and its institutions;”
• providing greater clarity on the relationship between independent commissions (such as a Human Rights Commission, an Independent Electoral Commission, and a Commission on Public Integrity) and other organs of state; and
• retaining the current Presidency Council (a three-person office of the president) until such time as the Federation Council is constituted (currently, the Presidency Council, considered by many to be the body best suited for resolving sectarian and ethnic disputes, is set to expire at the end of this legislative term and be replaced by a single President).

On the controversial matter of personal status (family law), the report provides that Iraqis “shall have the right to commit to the provisions of his religion and sect in his personal status and the personal status law shall ensure its regulating.” (Please excuse the rough translation). While in Baghdad a senior member of the CRC informed me that by explicitly mentioning the “personal status law,” the revised language is intended to alleviate concerns that the current Constitution allows Islamic law to override the existing secular code. Personally, I don’t see it. It might be the translation, but women’s rights leaders in Baghdad expressed to me great frustration that the revised text does nothing to protect women from what they perceive as inequality under some aspects of Islamic personal status law.

On Iraqi citizenship, the report takes a step backwards. Whereas the current Constitution makes clear that anyone born to an Iraqi father or mother is an Iraqi citizen the report replaces the “or” with an “and” — children born to one Iraqi parent are citizens only in accordance with future regulations.

But the real consequence of the document is its treatment of the provisions concerning the relationship between the central and regional governments. The report takes the notable step of adding several competencies to the exclusive powers of the federal government. It also makes explicit the federal government’s right to use the military to maintain order and security within a region’s boundaries. And the report clarifies that implementing legislation called for in the Constitution is federal and not regional legislation.

However, the report retreats from a series of important amendments that appeared in a draft as recently as this past June. The June draft revised the treatment of Iraq’s natural resources (oil and gas) empowering the federal government with the responsibility of collecting all oil and gas revenue (and then charging it with automatically and transparently distributing it proportionally among the provinces and regions), and making the federal government “together” with the relevant regions and provinces responsible for managing all reserves (under the current Constitution the federal government is responsible for managing on “present fields” – managing non-existing fields is left to regions. It also made federal law supreme to regional law with regard to the critical matters of oil, natural gas, water, customs, and ports. Instead of these proposed changes the report sheepishly notes, “Articles 111-115 [the articles relating to the distribution of powers and natural resources] are still under discussion.”

The CRC removed these recommendations because of the controversy they were sure to cause with the Kurdistan Regional Government (KRG). In fact, the KRG had already rejected these recommendations when they were first presented in May 2007 as part of the CRC’s interim report. What is confusing is why the CRC removed some controversial proposals but kept others – the additional exclusive federal powers, for example, were also contained in the interim agreement and rejected by the Kurds. Even more curious is that the final report contains new provisions sure to inflame the Kurds as much as those that were removed – the interim report did not have a provision on the use of armed forces in the region.

The “half full” reflection on the constitutional review is the extent to which Shia and Sunni interests aligned. Indeed, one would be hard pressed to find areas where the two do not share a common vision of the state. Unfortunately, this was the case in May 2007 as well. So instead of trumpeting the synergies between Sunni and Shia, one must read the CRC’s report with regret that the last two years were not used to bridge the gap between Arabs and Kurds. This failure is not surprising – such is the political climate in Iraq today where rhetoric reigns and political paralysis is the norm. But it is still regrettable.

While it is not known when (if) the Council of Representatives will consider the CRC’s final report (most predict it will not occur until after the national elections scheduled for 2010) it is certain that Kurdish politicians will attempt to block the amendments in parliament and if they fail there will call upon residents of the Kurdistan region to reject them at referendum (a rejection by the three predominantly Kurdish provinces would alone be sufficient to prevent their passage). Such a rejection of the controversial amendments would mean a rejection of the agreed upon ones as well. In other words, two and half years of constitutional revision could amount to nothing unless Iraq’s political leaders seriously take up the matters in the CRC’s report that go to the heart of the federal character of Iraq.

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Published on August 20, 2009
Author:          Filed under: amendment, constitutional change, federalism, hp, iraq, Jason Gluck

The Constitution of Kosovo and Appointing Judges

One of the benefits of being a law professor in Washington, D.C. is that you have the chance to talk to the many interesting people who happen to be passing through town. For someone interested in comparative constitutional law in particular, this can be quite helpful, as your lunch companions can be valuable sources of information about constitutional developments around the world.

Many months ago, I met with someone who had worked on the creation of the Constitution of Kosovo. I learned from her of an intriguing part of the new constitution,
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Published on August 16, 2009
Author:          Filed under: Uncategorized

Guest Post: Constitutional Aftermath of Taiwan’s Typhoon

Typhoon Morakot, now known as Taiwan’s Katrina, brought not only a catastropic flood but also a political avalanche to Taiwan. Public criticism toward the government’s disordered, too-slow rescue efforts is giving rise to anger against President Ma, blaming him for his inaction, wooden qualities and incompetence as leader of the nation. One can also understand this as a constitutional issue: why did President Ma, a Harvard Law School graduate who won an overwhelming victory in last year’s presidential election and will soon take office as chairman of the ruling party, fail to use his emergency powers to deal with a national emergency?

The answer is has to do with Mr. Ma’s constitutional theory, which has shown some similarity with constitutional practices under the authoritarian regime. As background, Taiwan’s system is semi-presidential, in which the president supervises five branches of government, including the Executive Yuan. In practice, the president has himself exercised extensive political authority, particularly in the four decades of dictatorship that began to end in the late 1980s. The president did so through martial law and a ‘temporary’ suspension of parts of the constitution.

It seems that Mr. Ma was deeply impressed with the model created by his political mentor, the late President Chiang Ching-kuo. During Chiang’s presidency (1978-88), the president was an authoritarian leader holding exceptional powers, and thus had to show self-restriction in order to avoid appearing to run an unmanageable dictatorship. In his ten years in office, Chiang only appointed two premiers who were both technocrats, and gave them ample discretion. Leaving executive power to the premier and cabinet also advances a formalistic rule of law, for the constitution of 1946, as partly amended after 1991, vests the executive power in the Executive Yuan, the cabinet. It is not strange for Ma to imitate Chiang’s practice due to his sympathy to the late president’s style and his preference for rule of law formalism.

Moreover, as president of a post-authoritarian new democracy and successor of the old authoritarian regime, Ma has more reasons to refrain from exercising his legal emergency powers: he has to prove that the old days will never return again. Unlike former President Lee Teng-hui, Mr. Ma, who is a mainlander and elite technocrat loyal to KMT, is has the burden of showing that he is a democrat; part of the population deeply distrusts him, suspecting that he will “sell” Taiwan to China.

Mr. Ma has followed what he learned from Chiang to the extent it fits for a democracy. He appointed a technocrat as premier and trusts him with discretionary powers, treating him not as subordinate but partner. He has been temperate in exercising his emergency powers and refuses to exploit the national security council as a second government. Together, using these two institutions would enable the president to suspend the law enforcement and act without statutory authorization. In the end of authoritarian period, the opposition attacked both, arguing that the scope of president’s emergency power should be narrowed and the NSC is unconstitutional (NSC was “legalized” by the constitutional amendment in the 1990s).

Moreover, Mr. Ma’s somewhat passive approach also draws on his experience as mayor of Taipei. During his term of office (1998-2006), Ma avoided being a “unitary executive”, instead restricting his role to that of an adjuster or coordinator above the bureaucratic fray. He has not changed his role even after becoming the president. Unlike Chiang and Lee, Ma is neither a political strongman nor a charismatic leader. He also lacks the skills as a professional politician of former President Chen, his notorious predecessor. For Ma it is natural to pursue a self-restricting presidency.

However, Mr. Ma may underestimate the constitutional transition that occurred during Taiwan’s democratization. Through the constitutional amendments in the 1990s, former President Lee gave the presidential system formed in authoritarian period a democratic basis and renewed the regime of emergency powers. During his presidency (1988-2000), Lee had made Taiwan a centralized state and her president the only representative of legitimate, unlimited power of the sovereign people. As to the matter of emergency, the new constitutional canon is that the president is the unitary executive who acts through the NSC. The divided municipalities and counties have no ability to cope with such a devastating natural disaster. Nor the cabinet can respond to such an emergency unless its efforts are endorsed by the president. Only the president, by invoking his national security powers, can provide military personnel and justification of government action needed in a national emergency. It is impossible for any Taiwanese president to ignore the new canon. The ongoing tragedy shows Taiwan lacks an effective and self-directed bureaucracy that is the precondition of Ma’s self-restricting presidency; on the contrary, Taiwan’s bureaucracy is, as it was in the authoritarian era, heavily dependent on pressure from the top. This may be one of the reasons the present constitution favors presidential to parliamentary government.

President Ma’s failure indicates the difficulty of a national leader to properly use his constitutional emergency powers in a post-authoritarian democracy. In Ma’s case, unfortunately, he is running out of time to learn.

–Tokujin Matsudaira, Research Fellow, Hitotsubashi University, Tokyo

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Published on August 16, 2009
Author:          Filed under: emergency powers, hp, Taiwan

Canadian Decision on Guantánamo Bay

As noted in this New York Times story, a Federal Court of Appeal in Canada ordered Stephen Harper’s government to become more involved in seeking the release of a Canadian held in American custody.
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Published on August 15, 2009
Author:          Filed under: Uncategorized

Collateral Convictions and Comparative Constitutional Law

A new article about the collateral consequences of criminal convictions, with a comparative element looking at constitutional-style constraints on these consequences in several countries:

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, have turned to increasingly punitive punishment schemes and have histories of disproportionately incarcerating people of color. This article is the first that offers a detailed comparative examination of collateral consequences. The examination finds that the consequences in the United States are harsher and more pervasive than those in these other countries. It also shows that Canada and South Africa have articulated broad dignity protections for incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, the article offers steps to ease the legal burdens placed on individuals with criminal records in the United States, as well as to lessen the disproportionate impact these post-sentence consequences have on individuals and communities of color.

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Published on August 15, 2009
Author:          Filed under: Uncategorized

Once Pinochet’s Censor, Now President of the Constitutional Court

Even close observers of Chile’s constitutional politics were taken by surprise when an electronic newspaper (‘El Mostrador’) reported a few weeks ago that the new President of the Constitutional Court had been the director of DINACOS (an agency organized during Augusto Pinochet’s regime to implement censorship).

The new head of the Constitutional Court, Marcelo Venegas, had cultivated a low profile since arriving at the Court, in 2006. He became a member of it as a result of a close-door negotiation between the government coalition and the opposition.

Venegas, an undistinguished member of the Chilean legal profession, spent most of the time since the end of the authoritarian regime as an obscure legislative assistant to congressmen of Renovacion Nacional, one of the two political parties of the opposition.

The scandal that the information of Venegas’ past created in Chile’s legal and political circles did not, however, make any difference, since neither the new President nor his colleagues at the Court felt the need to revise the decision. Thus, Chileans will have to accept that the head of the body charged with advancing fundamental rights made a living censoring independent media during the country’s most brutal dictatorship in history.

Venegas’ appointment to the top post at the Constitutional Court represents yet another blow to the already low prestige enjoyed by the Court, after a year marked by mostly conservative decisions, such as the 5-4 ruling prohibiting the distribution by the government of the so-called ‘morning-after pill’, on the ground that it is an abortive medicine.

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Published on August 15, 2009
Author:          Filed under: Chile, constitutional politics, hp, Javier Couso

A noteworthy decision by the Mexican Supreme Court

On December 22, 1997 forty five persons from an indigenous community in Chiapas (a state of southern Mexico) were killed while they were praying early in the morning. The horrendous crime was followed by another one: under a lot of pressure the prosecutors captured and imprisoned fifty seven persons but several of them on false testimonies and fabricated evidence simply for being in the wrong place at the wrong time. More than ten years later, and after a Kafkian labyrinth of procedural hurdles, the Mexican Supreme Court mandated last Wednesday the immediate liberation of more than half of the accused on grounds of serious violations of their due process rights.

The decision is noteworthy for several reasons. First and foremost, at least some justice has been done by liberating several persons whose culpability had not been duly demonstrated. Second, it takes place in the context of the first phase of the reform of the Mexican criminal justice system, that is being transformed from an inquisitorial into an adversarial system. Mexico is a late comer in the Latin American region regarding this transformation, which has taken place in Chile and Peru among other countries. The reform will take about seven years to be completed, and from the beginning it has been facing important opposition for different groups in Mexico; one of them is the criminal lawyers who don’t want to change a system that they know how to handle. The reform has two main goals, improving efficiency and professionalizing the prosecution, which is the Achilles’ heel of the Mexican criminal justice system. Thus, with its decision in this politically charged case, the Mexican Supreme Court has made clear not only its support for the reform but more importantly it has taken the lead in the effort to build a professional prosecutorial corps whose guide should be the due process rights when investigating crimes.

Last but by all means not least, the case of the indigenous prisoners was litigated by professors and students of CIDE’s law school, a public research center in Mexico City. Jose Antonio Caballero, the head of the law school, set up a clinic of public interest litigation and they have started with the right foot. This is an important effort in the building of a “support structure” (Epp 1998) for rights litigation, that is being strengthened considerably in Mexico and also in other Latin American countries.


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Published on August 14, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, Mexico